• The Brown Act requires an agenda to specifically identify a public agency’s consideration of a CEQA document for a project – it is not sufficient to simply identify the project itself if the agency is also considering the CEQA review for the same project.

• Practice point: While this case involves a negative declaration, its holding may also apply to a local agency determination that a project is exempt from CEQA – such an exemption
determination should also be separately identified in the agenda.

DISCUSSION

This case holds that a county planning commission agenda violated the Brown Act by failing to mention that the commission was considering the adoption of a mitigated negative declaration for a subdivision project, and instead only identified the project itself. The court rejected the county’s argument that the agenda’s reference to the commission’s consideration of the subdivision project itself (which the court disdainfully referred to as “another item of business”) was sufficient to put the public on notice that it was also considering the environmental review for the same project.

While this decision specifically deals with a negative declaration, its holding may also have implications for determinations that a project is exempt from CEQA. It is probably good practice for the agency to make sure that any such exemption determination for a project is specifically identified in the agenda.

The procedural posture of this case is a bit odd, since it involved a lawsuit directly challenging a planning
commission’s action on a project, while its decision was still subject to administrative appeal to the board of supervisors. This timing was the result of the Brown Act’s unique statutory deadline for filing such actions (within 15 days after the agency denies a request to “cure and correct,” per Government Code section 54960.1, subdivision (c)(3)). While the litigation was pending, the board of supervisors
actually granted an appeal and directed the planning commission to renotice and reconsider the item, just as a matter of “good policy.” But the county continued to vigorously dispute that the Brown Act
was actually violated, so the court addressed the otherwise moot issue. However, in an unpublished
portion of the decision, the court of appeal rejected an attempt by the petitioner to join a CEQA cause of
action with the Brown Act claim, holding that the petitioner still needed to exhaust administrative remedies for the CEQA claim.

June 12, 2013
Meyers Nave

Appellate Court Clarifies Agenda Requirements Under Brown Acthttp://www.meyersnave.com/publications/appellate-court-clarifies-agenda-requirements-under-brown-act
On May 31, in San Joaquin Raptor Rescue Center v. County of Merced, the Fifth District Court of Appeal issued an opinion holding that the Merced County Planning Commission violated the Brown Act by failing to post a sufficiently specific agenda prior to consideration of a subdivision proposal. The Commission posted an agenda for its meeting that included the potential approval of a development proposal. However, the agenda did not specify that the Commission would consider whether or not to adopt a CEQA mitigated negative declaration concerning the environmental impact of the project. At the meeting, the Commission approved the subdivision project and adopted the mitigated negative declaration by separate motion.
The San Joaquin Raptor Rescue Center filed a petition for writ of mandate against the County challenging both motions for violation of the Brown Act. Under the Act, a legislative body must post, at least 72 hours before a regular meeting, an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting. The Center also filed an administrative appeal with the Board of Supervisors which directed the Commission to vacate its approval of the project and hold a new meeting after issuing an agenda with the mitigated negative declaration specifically listed.
The trial court found that a Brown Act violation had occurred and been cured and corrected, and it awarded the Center attorneys’ fees and costs. The appellate court agreed and upheld the fee award, holding that the adoption of the mitigated negative declaration was “plainly a distinct item of business” and not a mere component of project approval since it (1) involved a separate action or determination by the Commission and (2) concerned discrete significant issues of CEQA compliance and the project’s environmental impact.
This decision reaffirms the importance of agendas that include sufficient specificity. While each individual agenda item need only include a “brief general description” of the item, an agenda must at least mention each separate matter to be considered. As in this case, courts will look to whether the policy of the Brown Act to facilitate public participation is fulfilled, and they may award fees and costs to a successful petitioner, even if an agenda item is renoticed and properly voted on at a subsequent meeting.

June 2013
Lozano Smith
Number 29

Agendas for Legislative Body Meetings Must Include Each Individual Item of Business in Clear and Unambiguous Terms… By David J. Wolfe, Tyler B. Dockins

http://www.lozanosmith.com/news_info.php?id=1025
In the recent case of San Joaquin Raptor Rescue Center v. County of Merced (May 31, 2013 __Cal.App.4th__ [2013 WL 2378584]), the Court of Appeal held that the Merced County Planning Commission (Commission) violated California's open meeting laws (the Brown Act) when it discussed and took action on an item that did not clearly and unambiguously appear on its meeting agenda.

The Brown Act requires a legislative body of a local agency to post, at least 72 hours before a regular meeting, "an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting." The Brown Act prohibits a local agency from taking action or discussing any item not appearing on the posted agenda. In San Joaquin, the Commission posted an agenda including an item regarding the potential approval of an application to subdivide approximately 380 acres of agricultural land. During its meeting, the Commission discussed and approved a California Environmental Quality Act (CEQA) document known as a "mitigated negative declaration" (MND) in connection with the subdivision project. However, the Commission failed to include this item of business in the meeting agenda.

The Commission argued that it was not required to place the discussion and possible approval of the MND on the meeting agenda because the MND was part of the overall subdivision project, which was an item on the agenda. The Court rejected this argument based on the Brown Act's requirement that an agenda must include a description of "each item of business to be transacted or discussed." The Court found that the discussion and adoption of the MND was not merely a component of the subdivision project approval, but rather a clearly distinct item of business because it: (1) involved a separate action or determination by the Commission, and (2) concerned discrete significant issues of CEQA compliance and the subdivision project's environmental impact. Therefore, the Commission was required to disclose this individual item of business on the agenda, and because discussion and action was taken on this item without doing so, the Commission violated the Brown Act.

The Court observed that one of the purposes of the Brown Act is "ensuring that the public is adequately notified of what will be addressed at a meeting in order to facilitate public participation and avoid secret legislation or decision making." Each item of business should "not be left to speculation or surmise." In San Joaquin, the Court found the Brown Act violation particularly egregious because it involved CEQA, and decisions to adopt CEQA documents are "always a matter of at least potential public interest since it would concern the local environmental effects of a proposed project." Further, because CEQA documents are not necessarily considered at the same meeting as consideration of the project, the Court found that the overall effect of leaving the MND off the agenda misled the public as opposed to informing them of items of business to be considered at the meeting.

This case serves as a reminder to local government agencies that, while agenda items only require brief descriptions, each item of business must be specified and the item must be identified in a clear and unambiguous manner. While the San Joaquin Court did not address whether an agency may combine more than one related item of business as part of the same agenda item, to help ensure compliance with the Brown Act, listing the items not only clearly but also separately may be advisable in certain instances.

To assist with Brown Act compliance, Lozano Smith makes available to clients its Brown Act Handbook, which is updated on an annual basis. A copy of the Handbook is available on our website.

The Fifth Appellate District affirmed in part and vacated in part a judgment. In the published portion of its opinion, the court held that a county planning commission violated the Ralph M. Brown Act, the state’s sunshine statute, when it took action on a matter that had not been expressly disclosed on its meeting agend.
The Merced County Planning Commission posted an agenda that set forth, as one item of business for an upcoming meeting, its potential approval of a subdivision project application by William Morris. However, the posted agenda did not mention that the commission would also consider whether to adopt a mitigated negative declaration (MND) pursuant to the California Environmental Quality Act (CEQA) as to the environmental impact of the Morris project. At the meeting, the commission approved the project and adopted the MND.
The San Joaquin Raptor Rescue Center and Protect Our Water (collectively, SJRRC) petitioned for writ of mandate against the commission and the county to set aside the commission’s actions, alleging that adoption of the MND violated the agenda requirements in Gov’t Code §54954.2(a)(1) and (2) of the Ralph M. Brown Act. The trial court found that a Brown Act violation had occurred and that the SJRRC was entitled to costs and attorney fees under §54960.5.
The county appealed, contending that the agenda requirements were satisfied because the public would have implicitly understood that CEQA documents, if any, would likely be considered at the time of the project’s approval.
The court of appeal affirmed in part and vacated in part, holding that the county violated the Brown Act by taking action on the MND without expressly disclosing that matter on the commission’s posted agenda.
The Brown Act clearly and unambiguously states, at §54954.2(a)(1),that an agenda shall describe “each item of business to be transacted or discussed” at the meeting. Here, the commission failed to disclose in its agenda that it would consider adoption of the MND at its meeting. The adoption of the MND was plainly a distinct item of business, and not a mere component of project approval, since it involved a separate action or determination by the commission and concerned discrete, significant issues of CEQA compliance and the project’s environmental impact.
Further, as an individual item of business, the MND had to be expressly disclosed in the agenda. It was not sufficient for the agenda to merely reference the Morris project in general. Accordingly, under §54954.2(a)(1) and (2), the commission violated the Brown Act because it discussed and adopted the MND at its meeting even though that matter was not in the meeting agenda.
The court rejected the county’s contention on appeal. Assuming arguendo that anyone could have speculated from the project’s approval appearing on the agenda that the adoption of the MND might possibly be considered at the meeting, the agenda was still not legally adequate. Rather, the Brown Act mandates that each item of business be described on the agenda, not left to speculation or surmise.
Nor was the county helped by the fact that §54954.2(a)(1) requires only “a brief general description” of each item of business. The agenda here did not mention the MND in even the most general terms.

The Fifth District Court of Appeal issued a decision in San Joaquin Raptor Rescue Center v. County of Merced (2013) __ Cal.App.4th__ (Case Nos. F064930 and F064675) on May 31, 2013. The case involved a challenge to a mitigated negative declaration (MND) adopted by the County of Merced for a project involving the division of three parcels totaling 380.45 acres into nine parcels of smaller size. The MND was approved at a meeting that did not reference the CEQA approval in the agenda. The court held that this omission from the agenda was a violation of the Brown Act.
Factual and Procedural Background
The County Planning Commission approved the proposed project and adopted the MND meeting in October 2009. The agenda for the meeting described the proposed subdivision application but made no mention that a CEQA document would be considered at the meeting. Petitioner San Joaquin Raptor Rescue Center sent a letter to the Commission objecting to approval of the MND because, they argued, the failure to mention a pending action on a CEQA document in the agenda violated the Brown Act. The Petitioner’s letter asked the commission to “cure or correct” the violation by rescinding certification of the MND. The Commission declined.
The Brown Act sets a 15-day statute of limitations following notice that a “cure or correct” request is denied. Petitioners filed a lawsuit in early November 2009 alleging both Brown Act and CEQA violations. The County demurred to the petition.
Concurrent to the litigation, the petitioner filed an administrative appeal to the County Board of Supervisors. The Board granted the appeal in January 2010. The Board directed the Commission to vacate its prior approval and hold a new meeting after issuing an agenda that conformed to the petitioner’s request. The Board explained that it was good policy to provide more information in public agendas but did not admit that the Commission actually violated the Brown Act.
Following the administrative appeal process, the Board filed a reply in support of its demurrer in February of 2010. This reply informed the court that the Board had granted the petitioner’s request for a new properly noticed meeting. The trial court overruled the demurrer, and oral arguments were held on the petition for writ of mandate.
Following the hearing on the merits, the trial court determined that a Brown Act violation had occurred but that it was cured and corrected. Similarly, the trial court held that while a CEQA violation occurred due to the notice for the public hearing listing the wrong date, the County’s decision to re-notice the action and re-certify the CEQA document mooted this claim. The trial court determined that the petitioner was the prevailing party based on the Brown Act attorneys’ fees and costs provision. The County appealed.
The Court of Appeal’s Decision
The Court of Appeal agreed with the trial court and held that the County Planning Commission’s agenda violated the Brown Act. The court reached this holding based on the language of the
Brown Act which requires that an agenda describe “each item of business to be transacted or discussed.” The court noted that this requirement is especially important for CEQA matters, since a public agency’s decision regarding a CEQA document “is always a matter of at least potentialpublic interest since it would concern the local environmental effects of a proposed project.” The agenda’s reference to the Commission’s potential approval of the project application was insufficient to notify interested members of the public that the Commission would also be deciding whether to adopt a CEQA document. The Commission discussed and adopted a CEQA document at a meeting despite not describing this action in the meeting agenda—a violation of the Brown Act. Thus, the appellate court upheld the lower court’s finding that the petitioner was the prevailing party for purposes of costs and attorneys’ fees under the statute.

In San Joaquin Raptor Rescue Center v. County of Merced, the California Court of Appeal for the Fifth District held that the Merced County Planning Commission violated the Brown Act by adopting a CEQA mitigated negative declaration without specifically noticing it on the Commission’s agenda. The agenda had indicated consideration of a subdivision application, but the court found consideration of the MND accompanying the application to be a separate action requiring separate notice under the Brown Act. However, the court rejected the plaintiffs’ CEQA notice violation claims because plaintiffs had failed to exhaust their administrative remedies.
FACTUAL AND PROCEDURAL BACKGROUND
The agenda described a potential approval, disapproval, or modification of a subdivision application. The agenda did not mention the MND, and when it was adopted by separate motion, the plaintiffs objected on Brown Act notice grounds only. When the Commission denied their objection, plaintiffs appealed to the Board of Supervisors.
While their appeal was pending, the plaintiffs also filed suit, seeking reversal of the project’s approval and alleging that the adoption of the MND violated both Brown Act and CEQA notice requirements. The County demurred, claiming adequate notice as a matter of law to both complaints, and failure to exhaust administrative remedies on the CEQA claim.
While the demurrer proceedings were pending, the Board granted plaintiffs’ administrative appeal. The Board refused to admit a Brown Act violation, but directed the Commission to provide more information to improve public notice. In light of the Board’s ruling, the Commission scheduled another hearing. The County also filed a reply to plaintiffs’ opposition to its demurrer, arguing that the rehearing would cure the notice violations. After the demurrer hearing took place but before the court ruled on the demurrer, the Commission conducted the rescheduled hearing, this time including proper notification regarding the subdivisionand the MND. The Commission reconsidered and re-adopted both.
Plaintiffs then filed a motion in the demurrer proceeding for a judicial determination that the notice violations had been cured and corrected by the Commission’s re-notification, reconsideration, and re-approval. The County opposed the motion, apparently concerned that such a determination might entitle the plaintiffs to an award of attorney’s fees. The trial court denied the motion and overruled the County’s demurrer.
SEPARATE NOTICE REQUIRED FOR CONSIDERATION OF CEQA DOCUMENTS
The court held that the MND was a separate item of business because it required discrete action by the Commission and concerned distinct issues about the project’s environmental impact and CEQA compliance. In other words, the MND and subdivision were separate actions because adoption of one did not automatically trigger adoption of the other, and it was important that the public be fully informed when CEQA documents were being considered. The court rejected the County’s argument that notice regarding the subdivision implicitly informed the public about the MND, holding that a general reference to the subdivision was not sufficient to meet the notice requirements under the Brown Act for the MND.
The court also affirmed the trial court’s decision overruling the County’s demurrer on the Brown Act claim. The court did so because in its reply papers, the County had reversed its position on plaintiffs’ “cured and corrected” argument, and the County had not taken the curative measures by the time of the demurrer hearing.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
On plaintiffs’ claim that the County had violated CEQA notice provisions, the court determined that the trial court shouldn’t have reached the merits because plaintiffs had failed to exhaust their administrative remedies before seeking judicial relief. The plaintiffs had filed their action while their administrative appeal was still pending, which provided an opportunity to raise the CEQA notice violation. Therefore, the trial court should have sustained the County’s demurrer. However, the court concluded the issue was now moot and did not overturn the trial court’s dismissal.

The County of Merced's failure to identify a mitigated negative declaration (MND) in a planning commission meeting agenda item description for a subdivision application has been deemed to be a Brown Act violation.
In the case of San Joaquin Raptor Rescue Center v. County of Merced, the California Court of Appeal considered a Brown Act challenge to the Merced County Planning Commission's approval of an application to subdivide 380.45 acres of agricultural land into nine parcels. The meeting agenda description for the item identified the subdivision application, the project location, and the general plan and zoning designations of the subject property. However, the agenda did not disclose that adoption of an MND would be considered with the subdivision application.
The Court ruled that the planning commission violated the Brown Act by taking action on the MND when that matter was not expressly listed on the meeting agenda. The opinion strictly interprets Government Code Section 54954.2(a)(1), which requires that meeting agendas contain “a brief general description of each item of business to be transacted or discussed at the meeting.” In the Court's view, the MND was an item of business distinct from the subdivision application and the agenda's reference to the subdivision approval was inadequate to alert the public that the MND would be considered too.
The County of Merced case is a reminder for public agencies of the need to include in their meeting agendas a description of any CEQA document that will be considered as part of a project approval.

In a partially-published opinion, the Fifth District Court of Appeal held that the Merced County Planning Commission’s failure to mention in its posted agenda that it was considering adoption of a mitigated negative declaration (MND) in connection with a minor subdivision approval violated the Brown Act. (San Joaquin Raptor Rescue Center v. County of Merced, et al. (5th Dist. 5/31/13) 216 Cal.App.4th 1167. Key points of the published portion of the opinion include:
· The Brown Act, which is liberally construed to accomplish its remedial purposes of facilitating public participation and open local agency meetings and decisionmaking, requires a local agency’s legislative body (broadly defined to include planning and other commissions) to post an agenda at least 72 hours before regular meetings (Gov. Code, § 54954.2(a)(1)); the Act also prohibits the body from discussing or taking action on any item of business not appearing on the agenda. (§ 54954.2(a)(2).)
· The Brown Act’s current version provides the agenda’s requisite “brief general description” of each “item of business … generally need not exceed 20 words” and that the agenda “shall” specify the regular meeting’s time and location and “be posted in a location … freely accessible to … the public and on the local agency’s Internet Web site, if [it] has one ….” (§ 54954.2(a)(1).)
· The trial court correctly ruled the Planning Commission’s “adoption of the MND was plainly a distinct item of business, and not a mere component of project approval, since it (1) involved a separate action or determination by the Commission and (2) concerned discrete, significant issues of CEQA compliance and the project’s environmental impact.” According to the Court of Appeal, “a public agency’s decision whether to adopt or certify a CEQA document (such as a negative declaration, MND or an EIR) is always a matter of at leastpotential public interest since it would concern the local environmental effects of a proposed project.”
· The Court rejected County’s argument that the agenda’s reference to another, related item of business – potential approval of the subdivision project – provided the requisite information to the public. While a member of the public might have speculated that adoption of the MND might possibly have been considered at the meeting, the Brown Act mandates that each item of business be described, “not left to speculation or surmise.” Moreover, “nothing in CEQA prevents an agency from holding a separate hearing on the CEQA document and then approving the underlying project at a later meeting. Additionally, if a project was found to be exempt, there may not be a CEQA document at all.”
· The Court also rejected County’s argument that requiring inclusion of CEQA documents in meeting agendas would make them unduly lengthy and cumbersome; a few added words such as “and consider adoption of a mitigated negative declaration” would have sufficed, and in any event the Brown Act’s requirements must be enforced notwithstanding any “cumbersome” effect.
· Because the trial court correctly ruled the Planning Commission’s agenda violated the Brown Act, it also correctly found petitioners prevailed in their Brown Act action and were entitled to move for their reasonable fees and costs as prevailing parties.
The Court of Appeal’s decision is undoubtedly correct, and it clarifies the requirements of the Brown Act in the CEQA context for the benefit of public agencies and members of the public alike. It also calls attention to an area where CEQA could be reformed. While nothing in CEQA expressly requires the agency’s decision on the environmental document to be considered at the same hearing as the hearing on the project approval, perhaps it should. Holding separate hearings on CEQA documents and project approvals is potentially confusing (particularly with regard to when agency actions become final and subject to challenge) and bad public policy. While CEQA itself does not require public hearings, the CEQA Guidelines already encouragecoordination of environmental review with consideration of project approval so that the CEQA process proceeds concurrently with, rather than consecutively and separately from, the project approval process. (See 14Cal. Code Regs., § 15004(c).) Since CEQA’s standing requirements currently also allow environmental concerns to be raised to the public agency outside the public comment period and at any time prior to the close of the public hearing on the project (Pub. Resources Code, § 21177(a),(b)), it could make some sense to require concurrent consideration of the CEQA document and project approval at the same public hearing/s where feasible – and, indeed, that appears to be the usual, and least confusing, practice followed by most public agencies.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.

By William W. Abbott, Diane Kindermann, Katherine J. Hart and Glen Hansen
Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 3rdquarter are shown in San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167.http://blog.aklandlaw.com/2013/10/articles/ceqa/2013-ceqa-3rd-quarter-review/
Approval of a negative declaration requires separate and distinct determinations from those involving action on the project entitlements. Accordingly, the CEQA document must be included on the agency agenda as specified by the Brown Act (Government Code
§ 54950 et seq.).A petitioner may legally challenge an agenda error of the Planning Commission, even when later cured by the Board of Supervisors. The trial court is authorized to award reasonable attorneys fees and costs to plaintiffs in successful Brown Act litigation.

The Ralph M. Brown Act requires a legislative body of a local agency to post, at least 72 hours before a regular meeting, an agenda containing a “brief general description of each item of business to be transacted or discussed at the meeting.” A recent appellate court decisionclarifies that a local agency seeking to approve a project and adopt a CEQA document for the project must disclose both items on the agenda.

The county timely posted an agenda for a planning commission meeting listing as a single item of business the commission’s consideration of a subdivision application. The agenda stated, “The action requested is to approve, disapprove or modify the application,” but did not mention the commission would also be considering adoption of a mitigated negative declaration for the project. At the meeting, the commission approved the application, and, by a separate motion, adopted the mitigated negative declaration.

The petitioners sent the commission a letter alleging it violated the Brown Act agenda requirement and demanding that the commission “cure and correct” the violation by rescinding both actions. Simultaneously, petitioners appealed the commission’s actions to the board of supervisors. After the commission denied petitioners’ request, petitioners filed suit. While the case was pending, without conceding a Brown Act violation, the board of supervisors granted the appeal and directed the commission to rescind the project approval and adoption of the mitigated negative declaration. The commission did so, and then properly re-noticed the agenda, re-approved the project, and re-adopted the mitigated negative declaration.
The trial court found a Brown Act violation and awarded attorneys’ fees to the petitioner. Hoping to avoid the fee award, the county appealed, but the court of appeal upheld the Brown Act ruling. The court concluded adoption of the mitigated negative declaration was “plainly a distinct item of business, and not a mere component of project approval,” because it involved a separate action by the commission and concerned discrete issues of CEQA compliance. The Brown Act’s purposes of facilitating public participation would be “impaired” if a public agency could refuse to disclose it would be considering approval of a CEQA document.
The court also rejected the county’s assertion the public would have “implicitly understood” that CEQA documents would “likely be considered” at the time of project approval, noting that even if a person might have speculated from what appeared in the agenda that adoption of a mitigated negative declaration might possibly be considered at the meeting, that would not make the agenda legally adequate; the Brown Act “mandates that each item of business bedescribed on the agenda, not left to speculation or surmise.” The commission could have easily complied with this requirement “by simply adding a few words, such as ‘and consider adoption of a mitigated negative declaration’ regarding the project.”